After losing police records appeal, Bristol DA ordered to pay man’s legal fees
The Bristol County District Attorney’s Office is on the hook for more legal fees after withholding public records about a deadly police shooting
The Bristol County District Attorney’s Office refused to release public records about a deadly police shooting, so the brother of the man who police killed sued. The district attorney’s office lost the case and was ordered to pay his legal fees. The district attorney’s office appealed the ruling, and then it lost again — and now it’s on the hook for even more of his legal fees.
On Friday, the Massachusetts Supreme Judicial Court ruled that Eric Mack is entitled to an award of fees for work his lawyer performed while fighting the district attorney’s appeal. The state’s high court initially declined to order the DA’s office to pay but reversed itself in a revised opinion.
“The Legislature added an attorney’s fees provision [to the Massachusetts Public Records Law] to encourage lawyers to take public records cases,” said Mack’s attorney, Howard Friedman. “The change in the Mack opinion confirms that plaintiffs who win on an appeal in a public records case are entitled to attorney’s fees for time spent on the appeal.”
A spokesperson for Bristol County District Attorney Thomas Quinn did not respond to a request for comment.
Mack sued the DA’s office for refusing to release records about his brother, Anthony Harden, who was shot to death by Fall River police officer Chelsea Campellone in November 2021.
A Suffolk County Superior Court judge sided with Mack and ordered the DA’s office to release the records. The judge also ruled that the DA’s office must pay Mack’s legal fees for the lower-court proceedings under a 2016 update to the Public Records Law.
The DA’s office appealed to the Supreme Judicial Court, which sided with Mack on most issues but sent the case back to the lower court for further review of one issue. Although Mack came out ahead, the justices did not order the DA’s office to pay additional legal fees for the extra work Friedman was required to do.
“In his brief, the plaintiff has requested that we award him appellate attorney’s fees and costs. We decline to do so,” Justice Frank Gaziano wrote in an opinion published in April.
However, the SJC amended its ruling in the revised opinion published Friday, stating, “The plaintiff may file an appropriate application for appellate fees and costs in this court for all claims he is ultimately successful on.”
The change is the result of a motion for reconsideration that Friedman filed in May.
According to Friedman’s motion, the Public Records Law’s legal-fee provision is important because it “provides an incentive for agencies to comply with the [law] and ensures that access to public records is not limited to those with the funds to pursue them in court.”
“A precedent that no attorney’s fees can be awarded on appeal of a Superior Court decision on public records would encourage defendants to appeal without fear of the added cost of paying fees for the work of counsel for plaintiff[s],” he wrote.
Mack filed his lawsuit against the DA’s office in February 2022 after it refused to provide many of the records about the shooting that he requested, including photographs of the scene, a surveillance video showing officers entering and leaving Harden’s apartment, recordings of investigators’ interviews with officers and EMTs, and other documents.
In its appeal, the DA’s office argued that it could invoke the Public Records Law’s privacy exemption to withhold information about the shooting — even the names of the officer who pulled the trigger and another officer who was present.
A sweeping police-reform law passed by the state Legislature in 2020 amended the privacy exemption to say that it “shall not apply to records related to a law enforcement misconduct investigation.”
However, the DA’s office argued that because it concluded the officers did nothing wrong, its investigation of the shooting wasn’t a “misconduct investigation” and the exemption still applied to the names and other records.
The SJC rejected this argument, finding that “the purpose of the investigation in this case was to determine whether the two responding officers committed any crimes or violated the Fall River police department’s use of force policy,” according to Justice Gaziano’s opinion.
“To require the investigation to end with a finding of police misconduct places the cart before the horse and runs counter to the goals of police accountability and transparency,” Gaziano wrote.
The SJC also rejected the DA’s argument that only the Massachusetts Peace Officer Standards and Training (POST) Commission has the authority to release the names of officers who are accused of misconduct.
The POST Commission was created by the 2020 police-reform law to oversee officer certification and create a statewide database of complaints against officers. The POST Commission itself filed an amicus brief opposing the DA’s argument.
According to the SJC decision, there is no language in the 2020 law saying that only the POST Commission can release the names of officers.
However, the SJC punted on another important issue: whether the DA’s office can withhold the recorded interviews with officers and EMTs under a Public Records Law exemption intended to protect law-enforcement investigations from being jeopardized.
According to the SJC, the Superior Court judge who sided with Mack failed to consider whether the investigatory exemption applies to the interviews. The SJC sent the case back to the lower court to consider this issue.
The DA’s office argued to the SJC that officers would decline to be interviewed for investigations if the recordings could be released due to concerns that people would post the recordings online “for the purpose of ridiculing or vilifying the interviewees,” according to court records.
According to the SJC decision, the high court has previously ruled that law-enforcement agencies can withhold interviews under the investigatory exemption to encourage witnesses to speak with investigators, but the court “only … considered this factor for private individuals — not public officials performing duties in their official capacity.”
The Superior Court judge has not yet scheduled a hearing to determine whether the interviews should be made public, according to court records.
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In other public records litigation news, CommonWealth Beacon published this story by Colman M. Herman on Sunday:
A Superior Court judge has ordered state Auditor Diana DiZoglio to remove redactions from audits her office released last year involving medical care and inmate deaths in jails operated by two sheriffs’ departments.
DiZoglio’s office had invoked an exemption from the state public records law in redacting passages in the reports, claiming their release could jeopardize public safety or cybersecurity, but Suffolk Superior Court Judge Michael Pineault ruled that the redactions were not justified.
“The redacted passages . . . do little more than set forth — at a high level of generality — [the Office of the State Auditor’s] recommendation that the [sheriffs’] departments develop additional written information technology policies and procedures and provide more IT training to their employees,” Pineault said in his nine-page decision. “The Court finds none of the recommendations to be particularly revelatory.”
The American Civil Liberties Union of Massachusetts filed suit in May of last year, challenging the auditor’s office redactions. The ACLU maintained that even if there was sensitive information that informed the audits, the audit reports themselves should be fully public.
You can read the rest of this story here.
Also, if you haven’t seen it yet, please check out my latest story about the James Carver case here:
That’s all for now!